N. Baskaran and Others vs D. Geetha

R. Banumathi, J.—This intra Court appeal is preferred against the order of learned single Judge in D. No. 40597 of 2011 in C.S. No. 340

of 2010 (14.2.2012) directing the Appellants-Defendants 1 to 3 to file appropriate application to condone the delay in filing the application to set

aside the ex parte decree dated 28.9.2011. Appellants are Defendants 1 to 3 in the suit. Brief facts: Suit property-six grounds in T.S. No. 7085/1

and 7085/2 of Thiyagaraya Nagar, Chennai originally belonged to C.P. Natesa Mudaliar who died intestate on 4.1.1974 leaving behind his wife

and children as under:-

Case of Respondent-Plaintiff is that all the legal heirs of C.P. Natesa Mudaliar agreed to sell the suit property to the Respondent and received

advance amount through N.T. Arasu, elder son of the family. It is the case of Respondent that she purchased one-fourth undivided share of the suit

property from N.T. Arasu under sale deed dated 27.1.2005 (Document No. 175 of 2005 on the file of S.R.O. T. Nagar). Respondent

approached Appellants for division of her one-fourth share and even though Appellants initially agreed, they delayed the division saying one reason

or other. Therefore. Respondent filed the suit C.S. No. 340 of 2010 for partition and separate possession of her one-fourth share. In the suit,

Appellants were shown to be represented by Power of Attorney M. Srinivasan. Suit summons were served upon the Appellants through their

Power of Attorney M. Srinivasan. In the suit. Appellants did not appear and they were set ex parte and ex parte decree was passed on

28.9.2011.

Slating that there was dispute between them and their Power of Attorney and that the Power of Attorney without intimating the Appellants

engaged the counsel and they had knowledge of ex parte decree only en 9.11.2011 when the Appellants were summoned by the Assistant

Commissioner of Police. T. Nagar Range, Appellants have filed application (D. No. 40597 of 2011) on 8.12.2011 to set aside the ex parte

decree passed against them. Registry returned the papers inter alia directing the Appellants to file appropriate application to condone the delay in

filing the application to set aside the ex parte decree. The same was represented by the Appellants stating that the application (D. no. 40597 of

2011) is well within the time from the date of knowledge and therefore, there is no delay in filing the set aside application. Office again returned the

papers on 19.1.2012 and the matter was posted before the Court.

The learned single Judge held that the allegations made against the power agent are good enough for condoning the delay and to set aside the ex

parte decree. However, that cannot be accepted as a valid reason to come to the conclusion that Appellants had knowledge only on 9.11.2011

and directed the Appellants to file an appropriate application. Being aggrieved by the said order (14.2.2012). Appellants have preferred this

appeal.

In this appeal. Respondent was served through her husband Somashekar Reddy and her name was also printed in the cause list. Since there

was no representation for the Respondent on our direction dated 12.12.2012, learned counsel for Appellants served notice upon Mr. A.D.

Jagadish Chandra, learned counsel appeared for the Respondent before the single Judge.

We have heard the arguments of the learned counsel for Appellants and the learned counsel for Respondent.

Mr. R. Narendran, learned counsel for Appellants submitted that Respondent served summons only to the power agent M. Srinivasan and

without intimating the Appellants, the power agent engaged the counsel and the Appellants were set ex parte and that Appellants had know ledge

of the same only on 9.11.2011 when the Appellants were summoned by the Assistant Commissioner of Police. T. Nagar Range and on verification

of the Court records. Appellants came to know about the fraud played on them by the Respondent and the alleged power agent M. Srinivasan.

Learned counsel for Appellants further submitted that there is dispute between the Appellants and the Power of Attorney and while so, service of

suit summons upon the Power of Attorney cannot be said to be due service upon the appellants.

As noted earlier, ex parte decree was passed on 28.9.2011 and application (D. No. 40597 of 2011) to set aside the ex parte decree was filed

on 8.12.2011. According to Appellants, they had knowledge of the ex parte decree only on 9.11.2011 and therefore, the application (D. No.

40597 of 2011) filed on 8.12.2011 is well within the period of limitation.

Application under Order 9, Rule 13 C.P.C. to set aside the ex parte decree has to be filed within the period of thirty days from the date of

decree or when the summons were not duly served, when the Appellants had knowledge of the decree. Knowledge is something more than mere

knowledge that a decree has been passed against the Defendants. In the suit (C.S. No. 340 of 2010) summons was served on the Power of

Attorney of the Appellants viz., M. Srinivasan.

Under Order 5. Rule 19 C.P.C., it is important that Court should record a declaration of ""due service"" before it can proceed ex parte ""Due

service'''' is effective in bringing the claim to the knowledge of the Defendants. Service on the Power of Attorney of Appellants cannot be said to

be ""due service"". In the plaint documents. Respondent has filed the xerox copy of Power of Attorney (13.11.2009) executed by the Appellants in

favour of M. Srinivasan. Even though Respondent has filed the xerox copy of Power of Attorney, service of summons on the Power of Attorney

cannot be said to be ""due service"". More so, when the Appellants claim that they have already cancelled the Power of Attorney (13.11.2009). In

the said facts and circumstances of the case, we do not find any reason to doubt the statement of Appellants that they had knowledge of ex parte

decree only on 9.11.2011, when they were summoned by the Assistant Commissioner of Police, T. Nagar Range. After consent from the lawyer

engaged by the Power of Attorney, Appellants have filed application (D. No. 40597 of 2011) to set aside the ex parte decree on 8.12.2011

which is well within the period of thirty days from the date of knowledge. Therefore, the order of learned single Judge cannot be sustained and

liable to be set aside. In the result, the order of single Judge in D. No. 40597 of 2011 in C.S. No. 340 of 2010 (14.2.2012) is set aside and the

appeal is allowed. Registry is directed to number the application D. No. 40597 of 2011 in O.S. No. 340 of 2010 and post the same before the

single Judge on 28.1.2013. No costs.